STATUTORY INSTRUMENTS.

S.I. No. 168 of 2012

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HEALTH (DEFINITION OF MARGINAL, LOCALISED ANDRESTRICTED ACTIVITY) (RETAIL CATERING ESTABLISHMENTS)

REGULATIONS 2012

(Prn. A12/0832)

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S.I. No. 168 of 2012

HEALTH (DEFINITION OF MARGINAL, LOCALISED ANDRESTRICTED ACTIVITY) (RETAIL CATERING ESTABLISHMENTS)

REGULATIONS 2012

I, JAMES REILLY, Minister for Health, in exercise of the powers conferredon me by section 54 (inserted by section 25 of the Irish Medicines Board(Miscellaneous Provisions) Act 2006 (No. 3 of 2006)) of the Health Act 1947(No. 28 of 1947) (as adapted by the Enterprise, Trade and Innovation(Alteration of Name of Department and Title of Minister) Order 2011 (S.I. No.245 of 2011) and the Agriculture, Fisheries and Food (Alteration of Name ofDepartment and Title of Minister) Order 2011 (S.I. No. 455 of 2011)), afterconsultation with the Minister for Jobs, Enterprise and Innovation and the Mini-ster for Agriculture, Food and the Marine, hereby make the followingregulations:

1. (1) These Regulations may be cited as the Health (Definition of Marginal,Localised and Restricted Activity) (Retail Catering Establishments) Regu-lations 2012.

(2) These Regulations come into operation on 1 June 2012.

2. (1) In these Regulations—

“Act of 1998” means the Food Safety Authority of Ireland Act 1998 (No. 29of 1998);

“authorised officer” means an officer appointed under section 49 of the Actof 1998;

“Authority” means the Food Safety Authority of Ireland, established undersection 9 of the Act of 1998;

“food business operator” means a food business operator of a retail cateringestablishment engaged in the supply of food of animal origin from a retail cater-ing establishment;

“official agency” means an official agency carrying out functions under a servicecontract and acting on behalf of the Authority pursuant to section 48 of the Actof 1998;

“retail catering establishment” means any retail establishment involved in cater-ing including hotels, restaurants, bakeries, public houses providing food,healthcare establishments, catering service providers, takeaway food service out-lets, shops and central production units in such establishments;

Notice of the making of this Statutory Instrument was published in“Iris Oifigiúil” of 29th May, 2012.

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“service contract” means a contract entered into between the Authority and theofficial agency pursuant to section 48 of the Act of 1998.

(2) These Regulations define “marginal, localised and restricted activity” forthe purposes of Article 1(5)(b)(ii) of Regulation (EC) No. 853/2004 of the Euro-pean Parliament and of the Council of 29 April 20041 laying down specifichygiene rules for food of animal origin and Regulation 2(1) of the EuropeanCommunities (Hygiene of Foodstuffs) Regulations 2006 (S.I. No. 369 of 2006)in relation to retail catering establishments.

(3) A food business operator’s supply of food of animal origin to other retailestablishments shall be regarded as “marginal, localised and restricted” only ifall of the requirements of Regulation 3 are complied with.

3. An activity may be regarded as “marginal, localised and restricted” only ifthe food business operator’s total supply of food of animal origin (to allcustomers, including retail establishments) which is produced in his or her estab-lishment is on average—

(a) less than 500kg per week, or

(b) where the retail establishments supplied are under the same owner-ship as the food business operator, less than 1,000 kg per week,

and the food business operator supplies food of animal origin which is producedin his or her establishment to other retail establishments only within 100km ofthe supplying establishment.

4. (1) Where a food business operator contends that an activity is “marginal,localised and restricted”, as defined in Regulation 3, the food business operatorshall bear the onus of proving that the activity complies with the requirementsof Regulation 3 of these Regulations.

(2) An activity shall be presumed not to be “marginal, localised and restric-ted” until the contrary is proven by the food business operator.

(3) In order to prove that an activity is “marginal, localised and restricted” asdefined in Regulation 3, the food business operator shall produce, at the requestof an authorised officer, all documents or records which prove that the activitysatisfies the requirements of Regulation 3.

(4) Where the food business operator maintains electronic records or othersuch records in a non-legible form, the food business operator shall provide anauthorised officer, on request, with copies of or extracts from such records, in apermanent legible form.

1OJ L 139, 30.4.2004, p. 55, as affected by the Corrigendum to Regulation (EC) No. 853/2004,OJ L 226, 25.6.2004, p. 22.

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(5) Where a food business operator contends that an activity is “marginal,localised and restricted”, the food business operator shall maintain the recordsand documents referred to in paragraphs (3) and (4), and pertaining to suchactivity, for a period of not less than two years.

5. (1) These Regulations shall be enforced by the Authority, or by an officialagency acting pursuant to a service contract with the Authority, or by both, andthe enforcement provisions contained in the Act of 1998 shall apply for thepurposes of ensuring compliance with the requirements of these Regulations.

(2) An authorised officer may, for the purposes of these Regulations, inspectand take copies of documents and records in the possession of a food businessoperator.

6. A person is guilty of an offence if he or she—

(a) obstructs or interferes with an authorised officer in the exercise of theofficer’s powers under these Regulations,

(b) fails or refuses to produce records or documents, or copies thereof, inaccordance with Regulation 4,

(c) fails to maintain documents and records in accordance with Regu-lation 4(5),

(d) fails to comply with a request under these Regulations from an author-ised officer,

(e) makes a statement to an authorised officer which the person knows tobe false or misleading,

(f) provides records or documents, or copies thereof, which the food busi-ness operator knows to be false or misleading in content,

(g) forges, or alters with intent to defraud or deceive, any document orrecord required to be produced or maintained pursuant to Regulation4, or

(h) gives in purported compliance with a requirement a name, address orother corroborative evidence which is false or misleading.

7. Where a body corporate, or a person acting on behalf of a body corporate,commits an offence under these Regulations and the offence is committed withthe consent, connivance or approval of, or is attributable to any neglect ordefault on the part of, any director, manager, secretary or any other officer ofsuch body, or a person purporting to act in any such capacity, such person isalso guilty of an offence and is liable to be proceeded against and punished asif he or she were guilty of the first-mentioned offence.

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8. An offence under these Regulations may be prosecuted by either—

(a) the Authority, or

(b) an official agency.

GIVEN under my Official Seal,24 May 2012.

JAMES REILLY,Minister for Health.

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EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legalinterpretation.)

These Regulations are intended to define “marginal, localised and restrictedactivity” as referred to in Article 1(5)(b)(ii) of Regulation (EC) No. 853/2004of the European Parliament and of the Council of 29 April 2004 laying downspecific hygiene rules for food of animal origin, and as referred to in Regulation2(1) of the European Communities (Hygiene of Foodstuffs) Regulations 2006.These Regulations apply to food business operators supplying food of animalorigin from a retail catering establishment or retail bakery to other retail estab-lishments.

These Regulations may be cited as the Health (Definition of Marginal, Local-ised and Restricted Activity) (Retail Catering Establishments) Regulations 2012and come into operation on 1 June 2012.

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